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Election Aftermath, Part 1: A Closer Look at Amendment 8

On November 2, Floridians overwhelmingly voted to accept all three proposed medical malpractice amendments on the ballot. While the approval of Amendment 3, which caps trial lawyers' fees and allows patients to collect their fair share of liability awards, is a definite victory for both patients and physicians throughout the state, the trial lawyers are expected to challenge the amendment in court. In the meantime, amendment 3 is self-implementing and became effective immediately.

Unfortunately, Amendments 7 and 8, backed by the trial lawyers, also passed and are already creating a myriad of headaches, questions and grave concerns among the health care community. Citing that both amendments are not self-executing and require legislative enactment, the Florida Hospital Association (FHA) filed separate court challenges to each in Leon Circuit Court. On November 15, Circuit Judge Janet Ferris issued a temporary injunction prohibiting the implementation of Amendment 8 until the legislature adjourns its 2005 session. In a separate hearing on Amendment 7 held on December 7, the Court granted the Motion to Dismiss filed by the opponents to the lawsuit. However, the FHA has appealed the Court's decision.

This article is the first in a two-part series that will examine the post-election impact of these two volatile amendments, providing careful analysis of the issues and concerns surrounding each as well as actions physicians can take now to protect themselves, their patients and our state's fragile healthcare system.

Also known as "three strikes and you're out," Amendment 8 states:

"Current law allows medical doctors who have committed repeated malpractice to be licensed to practice medicine in Florida. This amendment prohibits medical doctors who have been found to have committed three or more incidents of medical malpractice from being licensed to practice medicine in Florida."

Under this amendment, a strike is defined as a medical malpractice verdict or judgment, state licensure and disciplinary actions that have found a physician to have committed medical malpractice, and binding arbitration awards in medical malpractice cases. It is important to note that this definition does not include settlements, an intentional omission on the part of the trial lawyers designed to pressure physicians and medical malpractice insurers to settle cases in order to avoid a "strike." Incidentally, under existing Florida law, while medical malpractice insurance carriers may settle without an insured physician's consent, insured physicians cannot force their carriers to settle cases, creating a "catch 22" situation. Needless to say, this amendment, if implemented, will do very little to protect the public from medical malpractice. However, it will significantly impact high-risk medical specialties which could have a devastating effect on our state's ability to both recruit and retain these physicians, two efforts critical to ensuring patients have access to quality medical care.

As recognized by the Second Judicial Circuit Court, a number of issues and questions surround Amendment 8 and must be clarified prior to implementation, including:

  • Can it be applied retroactively? Are prior judgments or discipline actions considered strikes?
  • How does it affect medical malpractice actions which have already been filed?
  • Can a provider receive two strikes for the same alleged incident?
  • Which health care providers should be considered "medical doctors" and thus subject to the amendment?
  • Are doctor's constitutional rights to equal protection violated because some doctors will be treated differently depending on whether they settle or go to trial?
  • Will medical malpractice incidents which occur in other jurisdictions be considered equivalent strikes under Florida standards?

For example, does Amendment 8 apply if an action or lawsuit was filed before November 2, 2004, but no judgment has yet been entered? While logic and precedent would indicate that it should only apply to actions filed after the election, it is simply not clear at this point. In addition, as it currently stands, if a physician is sued, the plaintiff's lawyer must send a copy of the lawsuit to the Department of Financial Services, Bureau of Insurance Regulation, which then sends it on to the Department of Health (the "DOH"). In roughly nine out of ten cases, this will draw an investigation by the DOH. If the DOH takes disciplinary action and the provider also loses the lawsuit, does that constitute two strikes or just one?

So, as we all wait to see how Amendment 8 shakes out in the legislature and courts, how should you prepare and protect yourself? First, if you become the target of a medical malpractice lawsuit, even if you are insured, you should retain independent legal counsel in order to protect yourself and to advise you on the potential impact of your case on your license. Certainly, your medical malpractice insurer is there to protect and defend you. However, there are times when they may not be able to advise you fully due to conflict of interest issues, and personal legal counsel can provide additional assistance. Second, it is especially important that you continue to stay aware, informed and involved in this issue as it plays out over the next several months.

At this point, no one knows how, if or when Amendment 8 will officially be enacted, or what enabling legislation may be passed on Amendment 8. At least the Court has recognized the complexity and potential pitfalls surrounding it, providing for more careful examination of the issues involved and presenting the health care community with some hope as well as an additional opportunity to voice its concerns.

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